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CASES OF ECT

Listed below is a synopsis of cases submitted to the Committee regarding recipients of ECT therapy. Such cases help to illustrate the issues related to determination of capacity, informed consent, possible bias and implementation of protocols at state psychiatric centers.

PAUL HENRI THOMAS

The Committee first became aware of the issue of ECT at a public hearing held by the Committee in Syracuse on February 14, 2001 regarding the proposed closure of Hutchings Psychiatric Center by the Governor. One of the individuals testifying that day brought up the case of Paul Henri Thomas, then a patient at Pilgrim Psychiatric Center who had been receiving ECT against his will. Subsequently. members of both Houses of the Legislature were inundated with e-mails regarding this matter. Mr. Thomas had apparently received over 60 ECT treatments over his objection since 1999.

Shortly after the Syracuse hearing, the Committee requested the CQC look into the use of such therapies as ECT, patients' rights in such matters, and any specifics the CQC might be able to share regarding Mr. Thomas. On April 6, 2001, the CQC reported back to the Committee stating its review found documentary evidence and expert medical opinion that the treatment provided was an effective modality for Mr. Thomas and that the facility was in substantial compliance with applicable regulations of OMH regarding treatment over objection. Only minor issues relative to documentation of Pilgrim P.C.'s adherence to procedural requirements were identified.

In the interim, on March 3, 2001, Newsday reported that OMH officials had made activists feel unwelcome at a judicial hearing regarding Mr. Thomas held on facility grounds.

On March 12, 2001 Newsday reported on a judicial proceeding regarding Mr. Thomas, whereby he had originally been diagnosed with a schizophrenic affective disorder. However, more recently, he had been diagnosed with bipolar mania with psychotic features. (Note: The National Institute of Health's 1985 Consensus Statement indicated that the proper diagnosis was essential in determining the efficacy of ECT on a particular patient.)

On March 16, 200 1, Newsday reported that in June 1999. Mr. Thomas had agreed to undergo ECT. At that time he was deemed competent to provide his consent. After the third ECT treatment, Mr. Thomas refused to undergo further ECT treatments. At that time, his doctors determined that Mr. Thomas no longer had the capacity to make this decision. According to Newsday, "The revelation of a kind of Catch-22 --the strange circumstance that Thomas was fine when he consented to the procedure but mentally incompetent when he refused it -- took center stage at a hearing yesterday to determine whether doctors may again shock Thomas against his will." Newsday also reported that on February 1, 2001, Pilgrim P.C.'s Associate Medical Director and Director of ECT had signed a form authorizing a court order for additional ECT treatments without first examining Mr. Thomas in violation of State regulations.

On March 28, 2001, Newsday also reported that Pilgrim P.C. had issued a written order that all papers signed by Paul Henri Thomas must be intercepted and inspected and that he was not allowed unrestricted visitors unless they were family members or attorneys. There was to be one to one supervision for non-family visitors.

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In April 2001. the Committee learned of an allegation that an OMH employee had been forced to resign because of advocacy on behalf of Mr. Thomas. On May 1, 2001, the former employee, Anne Krauss, e-malled the Committee stating:

I am extremely concerned about possible violations in regulation and procedure which I fear have occurred in relationship to Mr. Thomas. and which may quite possibly occur in relationship to other people in situations similar to his .... Mr. Thomas' case sheds light on serious erosion of the system of checks and balances which should put limitations on the power of the treating psychiatrist in ordering major medical procedures and treatment .... As I stated in my letter of resignation... I was especially troubled by my agency's apparent failure to observe some of its own regulations and procedures ... Specifically, it appears that 14 NYCRR 527.8 (c) (4) (ii) was violated:

The treating physician failed to conduct a comprehensive review of capacity.

A second physician did not personally examine Mr. Thomas before signing the application.

On May 23 23, 2001, the Committee requested CQC revisit the case of Paul Henri Thomas enumerating a number of issues of concern. On October 1, 2001 the CQC responded.

ISSUE: Visiting Restrictions

MHLS brought action that was subsequently settled. "It is our understanding that supervision protocols put into place since the settlement have not met with any allegations that claim infringement of Mr. Thomas' rights."

ISSUE: Physician Actions

"The physician appointed to conduct the second review and examination completed and signed the application to the court for authorization for administration of ECT over objection prior to his personal examination of Mr. Thomas ... he did fail to follow established and required procedure ... we are confident that such a procedural error is not likely to occur in the future."

ISSUE: Former OMH Staff Person, Anne Krauss

Regarding Anne Krauss. "Your questions pertain to personnel issues within the internal control of the administration of OMH, so this matter is outside the purview of the Commission."

ISSUE: Bilateral vs. Unilateral ECT

Regarding bilateral vs. unilateral ECT, Pilgrim policy clearly favors the use of bifrontal bilateral electrode placement. According to Pilgrim's Policy Manual, "Unless compelling considerations favor unilateral ECT, biiateral ECT will be the recommended initial treatment." Pilgrim's Director of ECT told ECT investigators that much more stimulus was needed to obtain the same effect with unilateral ECT.

In the interim, Newsday reported the following on September 21, 2001 that Paul Henri Thomas had been released after his condition improved without the shocks.

Thomas got a court order in March (2001 ) barring doctors from administering the procedure, which can cause disorientation and memory loss, and which he described as a form of

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"torture"... The state had been appealing the judge's ruling barring shock treatments on Thomas, but both sides said the appeal is now moot and will be dropped ... a spokesman of the state Office of Mental Health ... said... "Any discharge is based on clinical considerations."... The state Attorney General's office, which represented Pilgrim in court, said... "That avenue (shock treatments) had been blocked by the court and,obviously, they had to go to Plan B. which was come up with a different approach in terms of medication ... And they happened to put together an approach that Mr. Thomas responded to very positively." Anne Krauss, a friend of Thomas, was ecstatic over his release. "it shows they could recognize he had recovered and that recovery took place without the electroshock that they previously felt was necessary... ... And in that way it's excellent.

ADAM S.

On May 24. 2001. the Committee requested the CQC look into the case of Adam S., a patient at Pilgrim P.C. Anna Szyszko. sister of Adam S., appeared before the Committee at its May 18, 2001 public hearing in New York City. She stated that Adam suffers from schizophrenia. The facility obtained a court order authorizing ECT in 2000. Adam had been determined to lack the capacity to make an informed decision regarding ECT use. The family objected and wanted alternative treatments. On July 18, 2001, the Szyszko family appeared before the Committee at its second public hearing in Albany again calling for alternative treatments for Adam. The family alleged that Adam was being abused and wanted him transferred to another facility. On September 13, 2001 the CQC submitted its report to the Committee. The CQC overall finding was that the recommendation that Adam S. receive ECT was appropriate. However, the CQC found several problems with his care unrelated to the administration of ECT, as well as documentation problems. The report, dated July 31, 2001, stated:

On August 7, 2000 an adverse event occurred involving a physician ... the physician exhibited very poor judgment and did not appreciate the seriousness of her actions. The physician resigned the next morning and it is our understanding that Pilgrim reported her to the national physician data base.

The second area of concern pertained to the failure of nursing staff to adequately monitor Mr. Szyszko ... The physician orders that specified every fifteen minute vital signs ... were not carried out, nor was it documented that nursing had notified the physician of the inability to carry out the order.

A number of documentation errors were identified.

On August 27, 2001 the Supreme Court of the State of New York, Appellate Division, Second Judicial Department vacated the stay of administration of ECT. However, to date, Pilgrim P.C. has not proceeded with ECT on Adam S.

PAM S.

On May 24, 2001, the Committee requested the CQC review the case of Pam S., a patient at MidHudson P.C., who, was appealing a decision to give her ECT over her objections. The Committee received the CQC report, dated July 3, 2001 on August 1, 2001. The report stated:

The facility petitioned the court for ECT over objection ... Two psychiatrists determined that (Pam S.) did not have the capacity to consent to ECT. Although the court ordered the treatment(s) ... staff had difficulty arranging for the provision of ECT treatments ... In the interim, MHLS obtained a restraining order (April, 2001). MHFPC requested to have the order lifted, but was unsuccessful (May, 200 1 ). The case is currently on appeal ... In summary, we determined that MHFPC is providing appropriate treatment... in accordance with applicable

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regulations and policies. Further, the plan to provide ... ECT appears to be a reasonable clinical treatment approach, considering the seriousness and intractability of her illness.

On August 27, 2001, the Supreme Court of the State of New York, Second Judicial Department denied the petition to proceed with ECT. "...the petitioner failed to prove by clear and convincing evidence that the patient lacked the capacity to make a reasoned decision regarding her treatment, which was the sole basis argued for the relief sought (see Rivers v. Katz. supra) ... In light of this conclusion, we need not determine whether the petitioner established by clear and convincing evidence that the proposed treatment was narrowly tailored to preserve the patient's liberty interest (see Rivers v. Katz supra. at 497-498).

The Committee was concerned that the CQC found ECT appropriate in all three cases, even though two of the cases were dismissed because of the patient's recovery without ECT and because of the court's finding that the patient had the capacity to refuse consent to ECT. The CQC indicated that it does not evaluate the efficacy of the patients' diagnoses. The CQC assumes the diagnoses to be correct. The CQC ascertained the viability of ECT as an accepted treatment modality based on the diagnoses recorded in the patients' records.

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